UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk June 5, 2000

TO: ALL RECIPIENTS OF THE OPINION
RE: 98-2265, Weitz v. Lovelace Health System Inc. Filed on May 31, 2000 The slip opinion, filed on May 31, 2000, contains atypographical error on page three, in the first sentence of section “I. BA CKGROUND.” The date, “January 21, 1991” is corrected to read “January 21, 1992.” Please make the correction to your copy of the opinion. Sincerely, Patrick Fisher, Clerk of Court
By: Keith Nelson Deputy Clerk

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 31 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LORRAINE L. WEITZ, Personal Representative of the Estate of Arlene Gutierrez, Deceased, and Personal Representative of the Estate of Loretta Gutierrez, Deceased, Plaintiff-Appellant, v. LOVELACE HEALTH SYSTEM, INC., doing business as Lovelace Medical Center; LOVELACE MENTAL HEALTH PARTNERSHIP; TIM STROGIN, PH.D.; GENEVIEVE DAVIDGE, LCSW; J. BARRY RUMBLES, LCSW, Defendants-Appellees. and CIGNA CORPORATION; CIGNA HOLDINGS, INC.; CIGNA HEALTH CORPORATION; CIGNA HEALTHCARE INC.; CONNECTICUT GENERAL CORPORATION; UNITED STATES OF AMERICA, Defendants. No. 98-2265

Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV 94-1286 MV)1 These other defendants were voluntarily dismissed at the summary

judgment hearing and are not parties on appeal. - 2 - Richard D. Barish, Albuquerque, New Mexico, for Pla intiff-Appellant. Gary L. Gordon, Albuquerque, New Mexico (Robin A. G oble, with him on the briefs), for Defendants-Appellees.

Before EBEL, HOLLOWAY, and KELLY , Circuit Judges.

EBEL , Circuit Judge.

Plaintiff-Appellant Lorraine Weitz (“Weitz”) filed an action on behalf of her sister, Arlene Gutierrez (“Arlene”), and her ni ece, Loretta Gutierrez (“Loretta”) in federal district court against the U nited States, Lovelace Health and several of its employees and business affiliates (c ollectively, “Lovelace”) (a mental health provider), and various other defendan ts. 1 Weitz filed suit against the United States pursuant to 28 U.S.C. § 1346(b), the Federal Tort Claims Act, alleging negligence. Weitz also brought claims of negligence against Lovelace pursuant to New Mexico state law. The district cou rt had pendent jurisdiction over the New Mexico state law claims pursuant to 28 U.S.C. § 1367. The district court dismissed the United States as a party pursuant to Federal Rule of Civil- 3 -

Procedure 12(b) and granted summary judgment for Lo velace on the New Mexico state law claims. Weitz appealed the order of the district court. Thi s court dismissed the United States from this appeal by order entered Mar ch 4, 1999. Thus, Lovelace is the only appellee and the New Mexico state law clai ms are the only claims remaining in this case. We exercise jurisdiction p ursuant to 28 U.S.C. § 1291 and
AFFIRM.
I. BACKGROUND On January 21, 1992, Edward Gutierrez (“Eddie”), hu sband of Arlene Gutierrez and father of Loretta, shot Arlene and Lo retta and then took his own life. Eddie was an Air Force Staff Sergeant statio ned at Kirtland Air Force Base in Albuquerque, New Mexico. Lovelace provided ment al health care services to Air Force personnel and their families at Kirtland. Eddie and Arlene began having marital problems in t he early 1990s. They attended counseling sessions in connection with the se problems in December 1991. They were seen jointly on December 4 by J. B arry Rumbles, a psychotherapist employed by Lovelace who referred them to a therapist for counseling. Eddie and Arlene were then seen jointl y on December 9 by Dr. Cal Bolinder. Bolinder was apparently employed by Adle rian Therapy Services, not Lovelace. Bolinder saw Eddie individually on Decem ber 12 and Arlene- 4 -

individually on December 11 and 20. Bolinder also had telephone conversations with Arlene on a number of occasions. Arlene expre ssed concern about Eddie’s violent tendencies during these conversations. Bol inder told Arlene at the December 20 session and on the phone on December 30 that she should try to keep herself and Loretta away from Eddie. Eddie asked Arlene to come to his home on December 29 to discuss their marriage and Arlene agreed to go. When Arlene arri ved with Loretta, Eddie was drunk. Arlene and Eddie discussed divorce, and Edd ie said that he would disown Loretta so that he would not have to pay child supp ort. After Arlene told Eddie she was leaving, Eddie pulled out a handgun. Arlen e managed to wrestle the gun away from Eddie. Eddie at that time threatened sui cide. Arlene reported the incident the following day to Col. Richard Haupt, E ddie’s commanding officer. Haupt made an appointment for Eddie to be evaluated by the mental health clinic. When Eddie told Haupt that he felt an examination w as unnecessary, Haupt ordered Eddie to go to the clinic. Although Eddie had an appointment to see Capt. Sall y Kroner, a psychiatrist and Air Force officer, he arrived late for his appointment and could not be seen by Kroner because she had another appoi ntment. Eddie was instead seen by Genevieve Davidge, a licensed clinical soci al worker employed by Lovelace. Davidge observed that Eddie was anxious and that he was unsure of- 5 -

his ability to handle his emotions should he and Ar lene divorce. Davidge concluded that Eddie was not an immediate threat to himself or others but scheduled an appointment for Eddie to return the fo llowing day for further examination. Haupt ordered Eddie to go to the Dece mber 31 appointment. After meeting with Eddie a second time, Davidge concluded that Eddie was improved. Davidge recommended continued outside counseling, b ut none was arranged and Eddie never received additional counseling. During the December 30 meeting between Haupt and Ed die, Haupt asked Eddie if he would be willing to turn over his weapo ns to Sgt. Keith Yekel. Eddie gave his weapons to Yekel on December 31. Two week s later, Yekel returned the guns to Eddie after Eddie asked for the guns back s o that he could go “plinking,” i.e., shooting cans. On January 21, Arlene went to Eddie’s home to pick up Loretta, whom he had been babysitting. Eddie shot and killed Arlene and Loretta and then took his own life. Weitz filed this action against the United States, CIGNA (the parent company of Lovelace), Lovelace, and other individua ls. As indicated above, CIGNA was voluntarily dismissed as a party at trial and this court dismissed the United States by an order entered on March 4, 1999, pursuant to a stipulation by the parties. Weitz’s remaining claims alleged thatLovelace had acted negligently by: (1) failing to adopt adequate policies for the evaluation of airmen who had- 6 -

threatened suicide or murder; (2) failing to warn t he United States that it had inadequate policies in this regard; (3) failing to provide an adequate system for evaluating troubled airmen who threatened suicide o r murder; (4) failing to properly train their personnel; (5) failing to prov ide competent personnel to perform evaluations; (6) failing to adopt adequate policies to supervise personnel; and (7) failing to adequately supervise personnel. The district court granted Lovelace’s motion for summary judgment, holding that: (1) Lovelace had no duty to control Eddie (i.e., prevent Eddie from harming another) because he was merely an outpatient; and (2) Lovelace had no duty to warn Arlene or Loretta because Arlene and Loretta were fully aware of Eddi e’s violent propensities.
II. Discussion A. Timeliness We must first address whether we have jurisdiction to review the district court’s summary judgment order, or whether our revi ew is confined to the district court’s denial of Appellant’s subsequent motion forreconsideration. Because we find that Appellant did not timely file her notice of appeal with respect to the court’s summary judgment order, we may only conside r whether the district court abused its discretion in denying her motion for rec onsideration.2 Excluding intervening weekends, any motion to alte r or amend under Fed.

R. Civ. P. 59(e) was due by June 10, 1997. - 7 - On May 27, 1997, the district court entered its ord er granting summary judgment and dismissing Weitz’s claims with prejudi ce. On June 10, 1997, 2
Weitz filed a Motion for Extension of Time to File Motions Pursuant to Fed. R. Civ. P. 59(e) to Reconsider Judgment Entered May 27 , 1997 Dismissing Plaintiff’s Claims. That motion requested an exten sion of time until June 20, 1997. On June 13, 1997, the court entered an ordergranting this motion and extending Weitz’s time until June 20, 1997, to file a Rule 59(e) motion. On June 20, 1997, Weitz filed a Rule 59(e) Motion to Recons ider Order Granting Lovelace Defendant’s Motion for Summary Judgment or, in the Alternative, to Certify the Question of Duty to the Supreme Court of New Mexico . On July 31, 1998, the district court denied Weitz’s motion. Weitz then f iled her notice of appeal on September 28, 1998. Generally, a party has thirty days from the entry o f the district court’s order or judgment within which to file a notice of appeal . See Fed. R. App. P. 4(a)(1)(A). When the United States or its officer or agency is a party to the case, the time is extended to sixty days. See Fed. R. App. P. 4(a)(1)(B). The appeal period is tolled, however, when a party timely file s either a motion to alter or amend the judgment under Fed. R. Civ. P. 59(e) (fil ed no later than ten days after- 8 -

entry of judgment), or a motion for relief under Fe d. R. Civ. P. 60 (provided that the Rule 60 motion is filed within ten days of entry of the judgment). See Fed. R. App. P. 4(a)(4)(A)(iv), (vi). In the case at bar, it is undisputed that Appellant did not file a notice of appeal until more than a year after the district court entered summary judgment in favor of Appellee. The questio n before us, therefore, is whether Appellant’s post-judgment motion, filed on June 20, 1997, successfully tolled the period for filing a notice of appeal. We must first examine whether it is proper to view Appellant’s postjudgment motion as a Rule 59 motion. Generally, th is court will construe a motion to alter or amend or to reconsider the judgm ent that is served more than ten days after the judgment is entered as a motion for relief under Rule 60(b).
See Van Skiver v. United States , 952 F.2d 1241, 1243 (10th Cir. 1992). Appellant filed her Rule 59(e) Motion to Reconsideron June 20, 1997, which was more than ten days after the district court entered its order granting summary judgment. Under most circumstances, we would there fore treat this as a Rule 60(b) motion filed more than ten days after the jud gment was entered, which thus failed to toll the time period for filing a notice of appeal from the summary judgment order. In rare cases, however, these time limits can be extended where the party makes a showing of “unique circumstances” justifyin g the delay. See Thompson- 9 -

v. INS , 375 U.S. 384 (1964) (announcing the “unique circu mstances” exception). Appellant contends that because she filed a motion for additional time to file a 59(e) motion within ten days of entry of summary ju dgment and because the district court granted that motion, this case prese nts such unique circumstances. We disagree. It is clear that the district court was not empower ed to grant Appellant additional time to file her 59(e) motion. Rule 59( e) specifies that “[a]ny motion to alter or amend a judgment shall be filed no late r than 10 days after entry of the judgment.” Fed. R. Civ. P. 59(e). Rule 6(b) grant s the district court limited authority to extend various time limits under the r ules. That rule provides, however, that the court “may not extend the time fo r taking any action under Rule[] . . . 59(b), (d) and (e), . . . except to th e extent and under the conditions stated [therein].” Id. ; see also Collard v. United States , 10 F.3d 718, 719 (10th Cir. 1993) (“Rule 6(b) expressly prohibits a trial court from extending the time to file [a Rule 59(e)] motion.”). Rule 59 provides no exceptions to the ten-day rule. Thus, the district court lacked authority to grant Appellant’s motion for additional time to file her Rule 59(e) motion. In Stauber v. Kieser , 810 F.2d 1 (10th Cir. 1982), this court held thata district court’s unauthorized grant of additional t ime to file a Rule 59(e) motion would constitute unique circumstances. There, the motion was filed more than- 10 -

ten days after the judgment, but within the thirty- day time period for an appeal, and we said that the appellant had relied to his pr ejudice on the order granting the extension of time to file a Rule 59(e) motion by no t otherwise filing an appeal within the required thirty days. However, several years later the Supreme Court in Osterneck v. Ernst & Whinney , 489 U.S. 169 (1989), adopted a narrow interpretation of the unique circumstances test. T he OsterneckCourt declared that “Thompson[(the Court’s decision announcing the unique circu mstances test)] applies only where a party has performed an act whi ch, if properly done, would postpone the deadline for filing his appeal and has received specific assurance by a judicial officer that this act has been properly done.” Id. at 179. Osterneckthus casts significant doubt on the continuing validity of our decision in Stauber

. One of our post-Osterneckdecisions suggests that Stauberis no longer good law. In Certain Underwriters at Lloyds of Lon don v. Evans , 896 F.2d 1255 (10th Cir. 1990), we held that a district court’s d ecision to grant a thirty-day extension for filing a notice of appeal (under circ umstances where the rules authorize only a ten-day extension) did not rise to the level of unique circumstances. See id. at 1257-58. In that case, a party requested an extension of time in which to file a notice of appeal after the initial thirty-day period for doing so had expired. Federal Rule of Appellate Procedur e 4(a)(5) authorized a ten-day extension upon a showing of excusable neglect or go od cause, but the court- 11 -

granted an additional thirty days in which to file. See id. at 1256-57. We dismissed the appeal for lack of jurisdiction, find ing that the district court’s erroneous ruling did not present unique circumstanc es. See id. at 1258. We held there, inter alia, that “an appellant has a duty to familiarize himself with the appellate rules,” and therefore the party’s “relian ce on the extension was [not] reasonable.” Id. By asking the court for an extension that the ru les expressly prohibit, the party invited the ensuing error. Id. Thus, Certain Underwriters holds that a case does not present unique circumstances where a plain reading of the rules would have allowed the party to avoid the error. In the present case, Appellant’s counsel could have avoided this mistake by reading Rules 59(e) and 6(b) prior to filing the mo tion for an extension of time. In light of the clear prohibition of the extension, we cannot say that Appellant’s reliance on the court’s order was reasonable. In t his regard, the present case is similar to Certain Underwriters , where we held that even a manifestly erroneous ruling by the district court did not constitute a s pecific assurance by the court that the request was properly made. See also Van Skiver , 952 F.2d at 1243 n.3 (noting that a district court’s consideration on the merits of an untimely Rule 59(e) motion does not present unique circumstances in the absence of affirmative assurances by the court that the motion was timely) ; Wollan v. United States Dep’t of the Interior , No. 98-1219, 1999 WL 398744 at *2 (10th Cir. June 16,- 12 -

1999) (unpublished disposition) (holding that grant ing a motion for extension of time is not the “specific assurance” required by Os terneck , and stating that “under Rule 6(b), the district court had no authority to e xtend the time for filing a Rule 59(e) motion, and plaintiff’s reliance on the exten sion of time [to toll the period for filing a notice of appeal] was unreasonable”); cf. Fox v. Noram Energy Corp. , No. 98-6141, 1999 WL 961226 at *3 (10th Cir. Oct. 2 1, 1999) (unpublished disposition) (holding that a district court’s accep tance of an untimely resubmitted Rule 59(e) motion after appellant had remedied a de fect in its timely motion did not constitute unique circumstances). Moreover, Osternecklimited the application of the unique circumstance s rule to instances “where a party has performed an a ct which, if properly done, would postpone the deadline for filing his appeal.” 489 U.S. at 179. In the case at bar, the rules expressly forbid granting an exte nsion for a Rule 59(e) motion, so by definition the motion to extend could never be “ properly done.” Unlike a situation where some extension of time was permissi ble, here the rules specifically and directly prohibit courts from gran ting any extensions for Rule 59(e) motions. Thus, the present case does not fitwithin the confines of Osterneckbecause no such extension would ever be proper und er the rules. In the present case, the rules expressly forbid anyextensions for Rule 59(e) motions, and even a passing reference to the rules will reveal this fact.- 13 -

Consequently, the mere fact that a court has grante d such an extension does not justify reliance that is clearly at odds with the t ext of the rules. It makes great practical sense to require the parti es to comply with clearly mandated requirements in the Federal Rules. Otherwi se, we would be encouraging litigants to invite courts to commit easily avoidab le errors. District courts today suffer under a burdensome caseload, and a certain d egree of cooperation and assistance from litigants is essential to the judic ial system’s effective operation. Just as we require attorneys to certify that all ar guments presented to the court have legal and factual bases, see Fed. R. Civ. P. 11(b), we likewise impose upon attorneys the duty to make sure that their requests are not expressly forbidden under the rules. “In the case of an intervening Supreme Court ruling , a single panel is permitted to reconsider a previous Tenth Circuit de cision to the extent the new case law invalidates our previous analysis.” Hurd v. Pittsburg State Univ. , 109 F.3d 1540, 1542 (10th Cir. 1997). Osterneckand subsequent decisions by this court make clear that an extension of time granted by the court but clearly prohibited entirely by the Federal Rules does not c onstitute unique circumstances salvaging an untimely notice of appeal. Thus, we e xpressly overrule Stauberto the extent it is inconsistent with Osterneckand Certain Underwriters . See Lichtenberg v. Besicorp Group Inc. , 204 F.3d 397, 404 (2d Cir. 2000) (“And- 14 -

though a timely motion under Civil Rule 59(e) would have postponed the appeal deadline, any request by [the party] for an extensi on of the time to move under that Rule would have been a request that, given the prohibition in Civil Rule 6(b), could not properly be made.”); Pinion v. Dow Chemic al , 928 F.2d 1522, 1532 (11th Cir. 1991) (rejecting a notice of appeal as u ntimely even though the district court had granted an extension of time to file a 59 (e) motion just two days after entry of judgment and noting that “the crucial juri sdictional question becomes: Was it reasonable for [appellant] to rely upon the district court’s improper extension of the time for filing post-trial motions , in spite of the explicit language of Rule 6(b) prohibiting the district court from gr anting such an extension? . . . [W]e must answer ‘No’”). The failure of Appellant’ s counsel to determine whether it was within the authority of the districtcourt to grant additional time negates Appellant’s claim that this case presents u nique circumstances. Consequently, Appellant is not entitled to the toll ing provision of Rule 59(e), and thus her ultimate notice of appeal with regard to the district court’s summary judgment order was untimely. We therefore lack jurisdiction over that claim. As a result, our review is limited to wheth er the district court properly denied Appellant’s motion to reconsider, which we c onstrue as a Rule 60(b) motion because it was filed more than ten days afte r judgment was entered. B. Standard of Review- 15 -

“We review . . . the disposition of Rule 60(b) moti ons for an abuse of discretion. . . . Under this standard, we will not reverse unless the trial court has made ‘an arbitrary, capricious, whimsical, or manif estly unreasonable judgment.’” Woodworker’s Supply, Inc. v. Principal Mut. Life In s. Co. , 170 F.3d 985, 992 (10th Cir. 1999) (quoting FDIC v. Oldenburg , 34 F.3d 1529, 1555 (10th Cir. 1994)) (citations omitted). C. Merits Under New Mexico law, Lovelace cannot be held liabl e for the deaths of Arlene and Loretta unless Appellant can show that L ovelace owed a duty of care to Arlene and Loretta Gutierrez. See Calkins v. Cox Estates , 792 P.2d 36, 39 (N.M. 1990). In Wilschinsky v. Medina , 775 P.2d 713 (N.M. 1989), the New Mexico Supreme Court stated that a health care prov ider may owe a duty of care to third parties under three circumstances. First, a doctor may be held liable when he exerts control over a patient (duty to control). See id. at 715. Second, the Wilschinskycourt noted, under the line of cases stemming from Tarasoff v. Regents of University of California , 551 P.2d 334 (Cal. 1976), a doctor may be held liable if he fails to warn or disclose his pat ient’s threats against a specific, identifiable third party to the authorities or the individual (duty to warn). See Wilschinsky , 775 P.2d at 715-16. Finally, the court held thata doctor owes a duty of care to third parties if he has given an outpati ent an injection of drugs that3 Following Wilschinsky , we treat separately situations where a patient (continued...) - 16 - could clearly impair the patient’s ability to reaso n and operate a motor vehicle. Id. at 716. It is clear that this third situation has no relevance to the case at bar. 1. Duty to Control Weitz argues the district court erred when it concl uded that Lovelace had no duty to protect Arlene and Loretta from Eddie’s violent propensities. The New Mexico Supreme Court has explained: In the control cases, courts have relied upon Secti on 315 of the Restatement (Second) of Torts to find a special rel ationship between doctor and patient, which creates a special duty to control that patient's actions. Restatement (Second) of Torts § 315 (1965). This doctrine, holding institutions and doctors potentia lly liable for patients with known “dangerous propensities” has be en recognized in New Mexico. See Kelly v. Board of Trustees , 87 N.M. 112, 529 P.2d 1233 (Ct. App.), cert. denied , 87 N.M. 111, 529 P.2d 1232 (1974); see also Stake v. Woman's Div. of Christian Serv. , 73 N.M. 303, 387 P.2d 871 (1963). Wilschinsky , 775 P.2d at 715. At present, New Mexico law states that the duty to control “must stem from the doctor’s control over his offices . . ., not fr om a duty to control a patient with known dangerous propensities.” Wilschinsky , 775 P.2d at 715. New Mexico apparently has not established whether a health car e provider can owe a duty to third parties arising from control where the indivi dual is being treated on an outpatient basis. 3 The strong weight of authority suggests that New Mexico3 (...continued)

receives an injection of powerful medications on an outpatient basis. - 17 - would not find such a duty exists under these circu mstances. As the court below aptly noted, at least five states considering the m atter have declined to find a duty under similar circumstances. See Boulanger v. Pol , 900 P.2d 823, 834 (Kan. 1995); Fischer v. Metcalf , 543 So. 2d 785, 787 n.1 (Fla. Dist. Ct. App. 1989 ); Wagshall v. Wagshall , 538 N.Y.S.2d 597, 598 (N.Y. App. Div. 1989); King v. Smith , 539 So.2d 262, 264 (Ala. 1989); Hinkelman v. Borg ess Med. Ctr. , 403 N.W.2d 547, 551 (Mich. Ct. App. 1987). Butsee Estates of Morgan v. Fairfield Family Counseling Ctr. , 673 N.E.2d 1311 (Ohio 1997). In most instances, the relationship a psychiatric outpatient has with the health care provider is less involved than that of an inpatient. In the latter circumstance, the medical professional is typically both responsible for and able to administer almost all aspects of the patient’s well-being. By contrast, the outpatient relationship usually requires that the treated individual care f or most of his or her daily needs, and affords the health care provider only limited o pportunity to supervise the patient. As a result, imposing a duty to control i n the outpatient context would require providers to exercise a degree of care and oversight that would be practically unworkable.- 18 -

The facts of the present case indicate that New Mex ico most likely would not impose such a duty on Lovelace. Lovelace treat ed Eddie on an outpatient basis, and it did so on only three occasions. In a ddition, some three weeks had elapsed between Eddie’s last encounter with Lovelac e and the murders of his wife and daughter. Relative to a situation where a pati ent is in the custodial or longterm care of a health care provider, Eddie’s contac t with Lovelace was minimal in both duration and degree. Thus, it would be unreas onable to conclude that Lovelace had the sort of substantial relationship w ith Eddie giving rise to a duty, much less the practical ability, to control him. 2. Duty to Warn Appellants further suggest that Lovelace owed a duty to warn Arlene and Loretta of Eddie’s violent propensities. New Mexic o has noted that many courts recognize “a duty to warn when a specific, identifi able third party [victim] was known to the doctor,” Wilschinsky , 775 P.2d at 716, although it does not appear that the state has resolved this question for itsel f. It is unnecessary to decide the applicability of Tarasoff in New Mexico, however, because it is probable that New Mexico would not impose such a duty in any event where the victim was already subjectively aware of the patient’s violenttendencies and specific threats. Other jurisdictions considering the matter have hel d that a victim’s awareness of the potential harm negates the health care provider’s duty to warn.- 19 -

See , e.g., Boulanger , 900 P.2d at 835 (“The duty to warn does not arise when the victim already knows of the danger.”); Leonard v. L atrobe Area Hosp. , 625 A.2d 1228, 1231 (Pa. Super. Ct. 1993) (“It is a curious lapse in logic on plaintiffs’ part to claim that [the doctor] should have warned them of information they already had, and with which they were familiar.”). In the products liability context, New Mexico has evidenced its agreement with the common- sense proposition that a duty to warn does not arise where the danger is kno wn. See Perfetti v. McGhan Med. , 662 P.2d 646, 651 (N.M. Ct. App. 1983) (“In this case there would be no duty to warn the [victim] if he actually knew of th e danger.”). The case law thus supports the proposition that a potential victim’s awareness of the specific threats and violent tendencies of an outpatient obviates th e health care provider’s duty to warn that potential victim. In the present case it is clear that Arlene was awa re of both Eddie’s threats against her and his propensity for violence. Recor ds from a counseling session Arlene attended December 20 indicate that she was aware of Eddie’s violent tendencies and the possibility that he might harm h er and her daughter. At that session, Arlene agreed with the therapist to avoid situations where Eddie might “be in a position to do harm to either one of them. ” Following the December 29th incident in which Eddie pointed a gun at Arlene, Ar lene told her sister that she4 Lovelace alleged that Arlene’s awareness of Eddie’ s threats relieved

Lovelace of any duty to warn Arlene or Loretta. Ap pellant has not argued to this court that Arlene’s awareness is insufficient to impute the same state of mind to her daughter. Thus, although it is unclear how New Mexico would resolve this issue, see Rider v. Albuquerque Pub. Sch. , 923 P.2d 604 (N.M. Ct. App. 1996), Appellant has waived any argument that Arlene’s kno wledge does not impute to Loretta, see FDIC v. Noel , 177 F.3d 911, 917 n.4 (10th Cir. 1999). Even wer e Arlene’s knowledge somehow ineffective in giving no tice to Loretta, we do not believe that New Mexico would find a duty to warn e xisted under these facts. - 20 - was afraid he would kill her. The therapist’s reco rds confirm Arlene’s awareness of the threat: A major turning point happened when Eddie threatene d Arlene and her daughter with a gun. . . . Once she got out of the house she knew that it was not safe to be around Eddie, ever again . She knew she could not trust him. . . . The threat of death dire cted towards Arlene and her daughter convinced me that things had defin itely gotten out of hand. . . . After some discussion I told Arlene the following: She mustkeep both herself and her daughter away from Eddie no matter how skillful he is at attempting to get them alone with him. Thus, there can be no doubt that Arlene was fully aware of Eddie’s potential for violence against her and her daughter. 4 As a result, we believe New Mexico would conclude on these facts that Lovelace did nothave a duty to warn Arlene and her daughter. Under the deferential standard of review to be appl ied to rulings on a Rule 60(b) motion, we cannot find that the district court committed error.- 21 - CONCLUSION For the foregoing reasons, we hold that the Appellant’s post-judgment motion should be treated as one under Rule 60(b), a nd that the district court did not abuse its discretion in denying the motion. Un der these facts, Lovelace had neither a duty to control Eddie nor a duty to warn Arlene or Loretta, and therefore Lovelace cannot be held responsible for Eddie’s con duct. Accordingly, the judgment of the district court is AFFIRMED.